Classified Information Oughtn’t Be Gamed by Team Libby

Team Libby is now objecting to the presentation of classified information to the judge ex parte by the government. According to Pete Yost of the AP (via Guardian UK), the lawyers representing Scooter Libby have filed objections to the ex parte submission of the classified information to Judge Walton, saying that:

Libby "has diligently protected some of this country’s most sensitive secrets throughout his many years of public service," the lawyers added. In arguing for keeping classified information away from the defense, Fitzgerald has noted in court papers that the underlying criminal activity Libby is charged with is the failure to adequately safeguard sensitive classified information.

The operative phrase in the Team Libby quote is "has diligently protected some of this country’s most sensitive secrets." (emphasis mine) That’s just not good enough.

Having access to classified material is a privilege, not a right. According to the nondisclosure agreement that you sign — the SF 312 (PDF) — requires that you never, ever discuss classified information with another person who does not have the requisite clearance to know about the material in question. This includes not leaking classified information to reporters. (For a basic primer on classified information and the duties involved in having your privileged clearance, see this.)

And in the case of Valerie Plame Wilson, who was a CIA NOC according to the CIA (who ought to know), even knowing her status within the CIA was a "need to know" bit of information. This has even higher levels of protection.

Additionally, as a clearance holder, you not only have an affirmative duty to ascertain whether the person to whom you are disclosing the information has adequate clearance before even opening your mouth about the classified information, you also have an affirmative duty to report anyone who has violated their clearance agreement by improperly disclosing such information. And when you are dealing with "need to know" matters, you do not disclose that information at all whatsoever unless that person has requisite clearance and a "need to know."

It’s pretty simple, really, and Scooter Libby, in confirming Valerie Plame Wilson’s status with Matt Cooper (after Karl Rove had already done so) violated the terms and conditions of his SF 312. Period. Let alone all the other classified bits and pieces that were leaking out of the Vice President’s office via Scooter as an ass-saving measure for the Administration once the fact that they had lied their way into the Iraq War started becoming public knowledge.

Scooter Libby violated his SF 312 by disclosing classified information. Further, so far as we know publicly, he did not follow his affirmative duty to turn in Karl Rove nor himself for doing this — with Matt Cooper, with Robert Novak, with Judy Miller, and with who knows which other journalists about town as the pushback on Joe and Valerie Wilson was in full swing.

And while we’re talking about it, Karl Rove, as far as we know publicly, failed to do the same. Why is it that Karl Rove still has his high level security clearance? THAT is a question that journalists ought to be repeatedly asking until this Administration gives an answer — since Karl has admitted to revealing Valerie Wilson’s job to Matt Cooper and Bob Novak, his clearance, had he been treated like any other governmental employee or any other person in this nation who holds such a clearance, would have been immediately suspended, pending investigation, and likely yanked altogether once his admissions were confirmed.

Yet there he sits, with who knows how much classified information moving across his desk, his access intact. The Bush Administration consistently brings up legal violations in others, but when the laws are to be applied to them, it’s "we don’t have to follow the rules — those are for little people."

Classified information is not something to be gamed. It’s not some child’s play with a tin can telephone, where you aren’t ever held accountable — releasing classified information of this level of importance, regarding an agent working on WMD matters related to nuclear, chemical and biological weapons, is no laughing matter.

And once Scooter Libby violated the restrictions that everyone else has to follow regarding classified information, then he was subject to treatment just like everyone else under the law. That includes restricting his access to classified information unless and until it is determined that said information is material to his legal defense — which is a determination that will be made by the Judge.

By breaking the law and releasing sensitive national security information, Scooter Libby forfeited his privilege of clearance — any presumption that he had the integrity to protect the nation’s secrets is gone. He is being treated like any other defendant in this situation — and who he worked for and how high his friends go in the government ought not matter one whit.

The same goes for Karl Rove. Why does Karl Rove still have a clearance? Because George Bush has decided he is above the laws that apply to everyone else. Don’t we as citizens deserve some answers about that?

NOTE: A few of housekeeping matters. First, we are clearly still trying to resolve some server issues with the new site. I apologize for the inconvenience for everyone — we’ll update as we get new information on this. But, for now, we’re still here at blogspot.

Second, I’ve been asked to be on C-Span’s Washington Journal on Sunday morning at 7:45 am ET. I’m not certain who will be my conservative counterpart on the show as yet, but I’ll update when I get that information. We’ll be discussing the news of the day for an hour, and I think they’ll be doing some call-ins from the audience, so I wanted to give everyone a heads up on this. So, I suppose I’m going to be a Sunday talking head this week.

Third, the Libby filing on this is not yet on the Scooter Libby website. And I haven’t had time this morning to pull the latest filings off Pacer. If anyone has already caught this and would be willing to send it to me at my AOL.com address, I’d be eternally grateful. (It’s been a very busy girlie morning here, and it’s tough to do analysis, pull documents, and play chase your daughter at the same time.) Thanks in advance if anyone can send this along — I’d like to see the whole document rather than just relying on the AP wire report. The article brings in questions on Valerie Wilson’s NOC status, but doesn’t give specifics on the Libby arguments on this, so I’d like the ability to review their case law citations and fact assertions.

UPDATE: From Cieran in the comments — thought this was important enough to pull it up so folks wouldn’t miss it:

Two quick related facts:

(1) all classified discussions must be motivated by a specific "need to know", so that there’s a lot more to it than simply "insuring the right clearance level for classified communications". Two people having the proper clearances is not sufficient legal basis for classified discussions — there must first be a "need to know" to justify the communication, regardless of whether the clearances permit it. Proper need to know motivations are inherently technical (not political!), and specifically exclude non-technical motivations, e.g., mere curiosity.

(2) classification is a LOT more complicated topic than the corporate media leads us to believe. There’s a lot more than "secret" and "top secret" involved here, including compartmentalization classifications (e.g., NNSA Sigmas) that may themselves be classified. Given this, the recent assertion by the WH that the prez can simply "choose to declassify" information by administrative fiat is not only ill-considered, but also hopelessly infeasible in the real world of interlocking and nested classifications.

As anotherpawn reminded me in the comments, "If in the course of conducting classified CIA business you met Plame – you’d either be cleared to know Plame was a NOC and ought to be informed about that, or you’d be introduced to her alter ego."

That’s correct, and I ought to have been more clear above — I was talking about revealing the NOC status to someone who didn’t even have any clearance at all whatsoever. There are very stringent rules — but they are fairly simple and clear — you don’t discuss classified information, period, unless you have a very good reason to do so, and unless you ascertain the level of clearance and the level of "need to know" of the information and the people with whom you will be sharing it.

Wanted to be certain that was crystal clear — because the shoddy treatment of classified information by members of the WHIG, and especially the Vice President’s office and the neocons allied therewith, who were using each other for confirmation, spin, and who knows what else with the media needs some substantial investigative reporting. And understanding the basics really highlights that need.

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.